Plaintiff, a farmer, commenced this action to recover for damage to his corn and hay crops, and a subsequent decrease in milk production, allegedly caused by defendant's breach of contract or negligence in spraying plaintiff's fields for weed control in 2002. Defendant, in turn, brought a third-party action against the manufacturer and distributor of the products that were sprayed on plaintiff's fields. After issue was joined and some discovery conducted, defendant and each of the third-party defendants moved for summary judgment.

The court shall address each of the challenged claims in turn, beginning with those in plaintiff's complaint. In support of its motion for summary judgment dismissing the complaint, defendant tenders the affidavit of Nicholas C. Chuff, a veterinarian and certified dairy herd planner. After reviewing relevant evidence relating to the milk production of plaintiff's herd, Dr. Chuff lists a number of factors, unrelated to corn silage production or quality, that could have had a negative effect on plaintiff's milk production in the period after harvest of the affected crop in 2002. Chuff further concludes that he finds "no link between the corn silage quality for the year 2002 and the plaintiff's alleged decreased milk production" (Affidavit of Nicholas C. Chuff, DVM, dated June 27, 2007, ¶ 6). This shifts the burden to plaintiff to come forward with proof raising a factual question as to whether the treatment of his crops affected his milk production, which he has not done (see, Reply Affidavit of Arthur Grinnell, dated September 6, 2007). Accordingly, so much of the complaint as seeks to recover for losses in milk production must be dismissed.

In addition to damages for decreased milk production (Plaintiff's Bill of Particulars, dated September 1, 2004, ¶¶ 3a, 3d), plaintiff also seeks to recover for direct losses to his corn ($8,944) and hay ($702) crops (id., ¶¶ 3b, 3c), and some "continuing" loss of corn and hay (amount unspecified) (id., ¶ 3d). He alleges that those crops were damaged by defendant's application of [*2]"improper chemicals," or "inaccurate amounts of chemical," which in turn "damag[ed] the crops and fail[ed] to control weeds" (id., ¶ 2). Those claims will not be dismissed, as defendant has not met its initial burden of demonstrating that neither its employee's choice of products, nor the method or timing of their application, caused a decrease in the yield of plaintiff's corn and hay crops. To the contrary, there is some evidence that defendant used products designed for use on 1" to 2" tall weeds, on weeds that were actually over 2" tall, which may have resulted in incomplete control of those weeds, and that defendant "oversprayed" the boundaries of the corn plantings, damaging alfalfa plants that were not intended to be treated (Deposition of Arthur Grinnell, dated April 14, 2005, pp. 45-47).

Turning to the third-party claims against Syngenta Crop Protection, Inc. (manufacturer) and McDowell and Walker, Inc. (distributor), in addition to seeking indemnification or contribution from those parties, defendant also asserts claims ostensibly sounding in breach of contract, breach of warranty, and strict products liability. Each of the claims contains limiting language, however, seeking recovery from the third-party defendants only "if and in the event plaintiff establishes the chemicals were improper and/or defective" (Third-Party Complaint, dated September 1, 2005). Thus, the claims for breach of contract, breach of warranty and strict liability are simply setting forth the particular theories of wrongdoing by the third-party defendants upon which defendant's claims of contribution and indemnification are grounded. This is further substantiated by the concluding paragraph, wherein defendant demands "that it have judgment over and against third-party defendants * * * for any sum which the plaintiff may recover against [defendant]" (id.). Defendant is not seeking an independent recovery from the third-party defendants on the stated theories, separate and apart from any claim plaintiff may have against defendant.

The indemnification claims must be dismissed. There is no contractual basis for indemnification. Nor has defendant alleged facts that would establish grounds for implied ("common-law") indemnification, which is generally available only to a party that may be found liable without actual fault, as, for example, where the law imposes vicarious liability (e.g., liability of an employer for the acts of its employee, or liability of a vehicle's owner for the acts of a driver) (see, Trustees of Columbia Univ. v Mitchell/Giurgola Assocs., 109 AD2d 449, 452-453 [1985]). In this case, plaintiff is suing defendant for its own wrongdoing, not on a theory of vicarious or other legal liability without fault. Plaintiff will only succeed on its claim if there is a finding of actual fault (negligence or breach of contract) by defendant, in which case defendant will not be entitled to indemnification. And if defendant is found to be without fault, it will not have to pay any damages to plaintiff, that could be recovered over from the third-party defendants (see, id., at 453-454; Board of Educ. of City of New York v Mars Assocs., Inc., 133 AD2d 800, 801 [1987]).

With respect to the claims for contribution, the third-party defendants raise several arguments. First, they contend that plaintiff is seeking only to recover for "economic loss," which can be obtained in an action for breach of contract, but not on a tort theory. Inasmuch as a contribution claim may only be sustained where the plaintiff's claim against the defendant sounds, at least partly, in tort (see, Board of Educ. of the Hudson City School Dist. v Sargent, Webster, Crensaw & Folley, 71 NY2d 21, 28 [1987]; Tower Bldg. Restoration, Inc. v 20 E. 9th St. Apt. Corp., 295 AD2d 229, 230 [2002]), the nature of the damages sought by plaintiff must [*3]be determined. If, as third-party defendants argue, plaintiff's alleged damages are properly characterized as solely economic losses, the contribution claims cannot stand.

In this context, "economic loss" refers to the "benefit of the bargain" struck between two parties, that is, the product, service or result that one party sought to obtain from the other, pursuant to their contract. This category of damages encompasses losses stemming from poor product quality or performance, which "go to the expectancy of the parties" (Hemming v Certainteed Corp., 97 AD2d 976 [1983]; see also, Bristol-Myers Squibb, Industrial Div. v Delta Star, Inc., 206 AD2d 177, 180-181 [1994]; cf., Hodgson, Russ, Andrews, Woods & Goodyear, LLP v Isolatek Int'l Corp., 300 AD2d 1051, 1052-1053 [2002]).

Here, the purpose for which plaintiff hired defendant was to provide products and services that would control the weeds in plaintiff's fields. Hence, insofar as plaintiff's losses are found to have resulted from poor weed control (regardless of whether the cause of that failure was an error made by defendant in his choice or application of the products, or poor performance of the products themselves), they would constitute a failure to provide the contracted-for result, and therefore economic losses. Direct (i.e., chemical) injury to the crops from the chemicals themselves may not be "economic loss," however, because the parties' agreement did not relate to protecting the plants from chemical damage, only to the control of weeds.

In support of their position that plaintiff has not suffered any non-economic loss that can be the proper subject of a claim for contribution, third-party defendants point to a report by the cooperative extension agent, Janice Degni, who noted that she "did not see prominent symptoms of sulfonyl urea (SU) herbicide injury * * * which would look like discoloration in the whorl, sometimes white and stunting," but rather, concluded that the damage to plaintiff's corn crop appeared to be the result of "weed control failure" or "variable" weed control, as well as other stresses such as "wet soils, compaction, shallow planting and loss of nitrogen" (Affidavit of William A. Ruskin, Esq., dated April 24, 2007, Exhibit L). The movants also cite a letter written by defendant's employee John Walker, who attributes plaintiff's crop reductions to rootworm damage and dry weather in the later part of the summer (id., Exhibit N). This is sufficient to demonstrate, prima facie, that plaintiff's crop loss resulted from poor weed control - and thus constituted economic loss, recoverable only in contract - or from extraneous factors, such as weather, pests, or shallow planting, for which third-party defendants bear no liability.

In opposition to this showing, it was incumbent upon defendant to come forth with some proof that raises a factual question as to whether plaintiff's crops suffered any injury, distinct from that caused by poor weed control or other factors such as weather, that might be attributable to a defect in the herbicides themselves, defective warnings, or other wrongdoing for which third-party defendants might be liable. In this regard, defendant relies on some of the deposition testimony of plaintiff and Degni. The cited testimony does not, however, provide any basis for concluding that plaintiff suffered any actual reduction in his corn yield from chemical damage, or that such damage, if it did occur, was due to a product defect or breach of warranty by the third-party defendants. Degni did testify that, on further examination of the photographs, she was able to see some of the symptoms of SU injury (Deposition of Janice Degni, dated April 24, 2006, pp. 28-29), and that she had possibly underestimated the extent of SU damage in her prior assessment (id., p. 95). There is no indication, however, that SU damage, or the fused brace roots attributable to "Banvel damage" (id., at 104), actually caused any decrease in plaintiff's corn [*4]production. The remaining proof cited by defendant (including plaintiff's testimony that he had "never seen chemicals fail to work") does not demonstrate that the herbicides caused any direct injury to the plants, other than by failing to control the weeds.

In sum, there is no proof that could support a rational conclusion that plaintiff's corn crop losses resulted from direct, physical damage to the plants - as opposed to a failure of the chemicals to control weeds - for which defendant might be able to recover over from the third-party defendants, on a contribution theory. In addition, there is no proof whatsoever - nor even an allegation, by any party - that the damage to the alfalfa hay strips' resulted from any "defect" in the herbicides themselves or their labeling, or any breach of warranty or contract on the part of the third-party defendants. Indeed, several of the instruction sheets for the herbicides specifically include "alfalfa" among the weeds' they are intended to kill or control (see, Affidavit of James Wojciak, dated April 16, 2007, Exhibits C, E). Clearly, there was no "warranty" or agreement, express or implied, that their application to alfalfa plants would not damage those plants, and defendant does not suggest otherwise. Accordingly, the third-party claims for contribution must be dismissed.

For the reasons stated, the third-party defendants' motions are granted, and the third-party complaint is dismissed; and defendant's motion is granted to the extent that plaintiff's claims for loss of milk production are dismissed, and otherwise denied. This decision shall constitute the order of the court.

Dated: January 29, 2008

Cortland, New York_______________________________

HON. PHILLIP R. RUMSEY

Supreme Court Justice

ENTER